CR 2002/39
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
ANNÉE 2002
Audience publique
tenue le vendredi 14 juin 2002, à 12 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président,
en l'affaire des Activités armées sur le territoire du Congo
(nouvelle requête : 2002)
(République démocratique du Congo c. Rwanda)
Demande en indication de mesures conservatoires
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COMPTE RENDU
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YEAR 2002
Public sitting
held on Friday 14 June 2002, at 12 noon, at the Peace Palace,
President Guillaume presiding,
in the case concerning Armed Activities on the Territory of the Congo
(New Application: 2002)
(Democratic Republic of the Congo v. Rwanda)
Request for the indication of provisional measures
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VERBATIM RECORD
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Présents : M. Guillaume, président
MM. Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal, juges
MM. Dugard
Mavungu Mvumbi-di-Ngoma, juges ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
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Present: President Guillaume
Judges Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Judges ad hoc Dugard
Mavungu Mvumbi-di-Ngoma
Registrar Couvreur
¾¾¾¾¾¾
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Le Gouvernement de la République démocratique du Congo est representé par :
S. Exc. M. Jacques Masangu-a-Mwanza, ambassadeur extraordinaire et plénipotentiaire de la
République démocratique du Congo auprès du Royaume des Pays-Bas,
comme agent;
S. Exc. M. Alphonse Ntumba Luaba Lumu, ministre des droits humains,
comme coagent;
M. Lwamba Katansi, professeur à l’Université de Kinshasa,
M. Pierre Akele Adau, doyen de la faculté de droit de l’Université de Kinshasa et haut magistrat,
comme conseils;
M.Lukunda Vakala Mfumu, assistant à l’Université de Kinshasa, assistant du ministre des droits
humains,
M
eKabinda Ngoy, assistant au cabinet du ministre des droits humains et avocat au barreau de
Lubumbashi,
comme assistants des conseils.
Le Gouvernement de la République rwandaise est representé par :
S. Exc. M. Monsieur Gérard Gahima, procureur général de la République rwandaise,
comme agent;
S. Exc. Mme Christine Umutoni Nyinawumwani, ambassadeur extraordinaire et plénipotentiaire de
la République rwandaise auprès du Royaume des Pays-Bas,
comme coagent;
M. Christopher Greenwood, Q.C., professeur de droit international à London School of Economics,,
comme conseil et avocats.
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The Government of the Democratic Republic of the Congo is represented by:
H. E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and Plenipotentiary of the
Democratic Republic of the Congo to the Kingdom of the Netherlands,
as Agent;
H. E. Mr. Alphonse Ntumba Luaba Lumu, Minister for Human Rights,
as Co-Agent;
Mr. Lwamba Katansi, Professor at the University of Kinshasa,
Mr. Pierre Akele Adau, Dean of the Faculty of Law, University of Kinshasa and Senior Magistrate,
as Counsel;
Mr. Lukunda Vakala Mfumu, Assistant at the University of Kinshasa, Assistant to the Minister for
Human Rights,
Maître Kibinda Ngoy, Assistant to the Minister for Human Rights and member of the Lubumbashi
Bar,
as Assistants to Counsel.
The Government of the Rwandese Republic is represented by:
H.E. Mr. Gérard Gahima, Procurer-General of the Rwandese Republic,
as Agent,
H.E. Mrs. Christine Umutoni Nyinawumwani, Ambassador Extraordinary and Plenipotentiary of
the Rwandese Republic to the Kingdom of the Netherlands,
as Co-Agent,
Mr. Christopher Greenwood, Q.C., Professor of International Law at the London School of
Economics,
as Counsel and Advocate.
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Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte, et je voudrais tout d’abord
préciser qu’à la suite d’une réunion que j’ai eue avec les agents des Parties, la République
démocratique du Congo a décidé de retirer les documents qu’elle avait déposés lors de la
précédente audience.
Nous allons maintenant entendre le deuxième tour de plaidoiries de la République rwandaise,
et je donne la parole au professeur Greenwood.
Mr. GREENWOOD: Thank you very much, Mr. President. Mr. President, may I take this
opportunity of thanking my learned friend, the Co-Agent of the Democratic Republic of the
Congo, for his decision to withdraw the documents that were put before you in the earlier session
this morning.
Mr. President, I can be very brief in my remarks to you this morning. The purpose of the
oral hearings, and in particular the second round of oral hearings, is to focus on the issues which
divide the parties. And this morning’s proceedings have very effectively done that. The learned
Agent for the Democratic Republic of the Congo finished the second round of argument by the
Congo by repeating to you the provisional measures of protection which his Government seeks.
And he was quite candid about that. He requested, amongst others, that there be an order for an
embargo on the supply of certain provisions to Rwanda and the purchase of certain items from
Rwanda; a request for a declaration that Rwanda has violated various international law instruments
and rules of customary law; a request for a provisional measure to the effect that the Congo has a
right to demand compensation from Rwanda, and great a deal else.
Mr. President, we can be clear that these are measures which could not be ordered by a court
as provisional measures of protection in any event. It is a request for an interim judgment on the
merits. Secondly, that there is no link whatever between the jurisdictional provisions in the treaties
on which the Congo relies ¾ and to which I will return in a moment ¾ and the measures which it
seeks. It is trying to use provisions in treaties of a highly specific character to bring before you a
request for provisional measures which, if indeed it is a request for provisional measures at all,
covers the entire gamut of the current situation in the Democratic Republic of the Congo. And in
particular, the Request by the Democratic Republic of the Congo invites you to make orders to
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non-parties because an embargo, an order for the establishment of a peacekeeping force, could not
be made in proceedings between two States, because they would necessarily have to be addressed
to other States and organizations which are not before you at this hearing.
Let me turn from that to the question of jurisdiction, because in our submission this is what
the hearings have really focused upon as the issue before you. Does this Court have a prima facie
basis for jurisdiction? No substantial response was made by the Democratic Republic of the Congo
to the points which Rwanda raised yesterday. We heard nothing whatever about what is the dispute
under the particular provisions of the Convention on the Elimination of All Forms of
Discrimination against Women. Or which provision of the Constitution of the World Health
Organization is the interpretation or application of that provision is in issue here.
We very clearly invited the Democratic Republic of the Congo to specify these points. They
have declined to do so. We are left with a suspicion ¾ in fact more than a suspicion ¾ that the
reason why they have said nothing on this subject is that there is nothing that they can say to the
Court.
But they did clarify one very important issue, and that is to disavow any intention of relying
upon the Convention on the Privileges and Immunities of the United Nations as a basis for
jurisdiction. And one of the learned counsel for Congo made clear this morning that references to
that Convention and to the Headquarters Agreement between the United Nations and the Congo
were solely to establish ¾ and I hope I have understood it aright ¾ that Rwanda has no authority
to murder members of MONUC. Well let me make it quite clear, Rwanda has never murdered or
attacked members of MONUC, has no intention of doing so, and does not need to be reminded that
it has no authority to do so, by reference to a treaty to which Rwanda is not a party in any event,
namely the Headquarters Agreement.
Now one or two issues of jurisdiction were touched on in the second round this morning.
First of all, I must reiterate what was said yesterday that, contrary to the picture that has been
painted by the Democratic Republic of the Congo, there is nothing remotely incompatible with a
respect for international law or a respect for this Court as an institution for a State to take a
jurisdictional argument. Innumerable counsel over the last 50 years have stood at this podium and
sat at that table and taken jurisdictional arguments in cases of this kind. The limits on the
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jurisdiction of the Court are a part of the international law which the Court applies and which
Rwanda is determined to respect. Nor, again contrary to what was said this morning by the Congo,
is Rwanda in any way standing before you and saying “you have no jurisdiction, let me continue
the massacres”, which was the phrase used by the learned Minister for Human Rights. There is a
clear difference, Mr. President, between the substantive law which Rwanda is bound by, has never
denied it is bound by, and is pledged to respect, and the question of jurisdiction. And it is, if I may
say so, a little rich for the Democratic Republic of the Congo to seek to assume that any challenge
to jurisdiction of a court must be a claim to impunity when it has itself only recently been
successful in this Court on an argument about diplomatic immunity and immunity in respect of one
of its Ministers. The difference between immunity or lack of jurisdiction and impunity is
something which the Congo should be very well aware of.
Let me turn then to the Genocide Convention and the reservation to it. Counsel for the
Congo argued this morning that that reservation is inadmissible and cannot be relied upon. But
they said not one word, Mr. President, about why the self-same reservation made by Spain and the
United States was held by a majority of 13 votes to 3 by this Court only three years ago, to be a
reservation on which those two States could rely. The argument put forward by the Congo in
respect of Article IX and the Rwandan reservation to it is wholly without merit. My learned friend,
counsel for the Congo, made the point that the Genocide Convention lays down obligations of the
most fundamental character binding on Rwanda, and Rwanda cannot escape from those
obligations. Mr. President, Rwanda has never sought to escape from those obligations; we are
bound by the Genocide Convention and we observe its contents. We respect its substantive
provisions, but we are not bound by Article IX; we exercised what was our right to make a
reservation to that Article. And it is no good my learned friend saying the human rights treaties are
different: if one looks at the panoply of human rights treaties, in the majority of cases the
provisions for dispute settlement are indeed explicitly of an optional character. One thinks, for
example, of the Optional Protocol to the International Covenant for Civil and Political Rights.
Then there is the point about arbitration and negotiation. With great respect, we say that the
Congo has completely misunderstood this issue. We are not saying that there is a general rule of
international law that before seising the Court the parties must always seek to achieve a settlement
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by negotiation or arbitration. And quotations from the Charter, quotations from learned works of
international law on the generality of any obligation of pacific settlement, are entirely beside the
point. What we are saying is that the treaties on which the Congo relies, specifically the
Convention on the Elimination of All Forms of Discrimination Against Women and the Montreal
Convention, and, albeit in a somewhat different form, the World Health Organization Constitution,
these specific instruments contain obligations of the clearest possible character to take certain steps
before the Court can be seised. There must be an attempt at a negotiated settlement of the dispute;
there must be an attempt to organize an arbitration.
Now, the Minister and various other members of the Congolese delegation said that
repeatedly the Congo has attempted to negotiate and put forward proposals of this kind. But are
two comments about that.
First of all, not one single document has been offered to you proposing arbitration, not
one — a marked contrast, for example, with Libya’s offerings to this Court in the Montreal
Convention Lockerbie case.
Secondly, what the Congo has actually done is to confuse two completely different issues. It
has confused proposals about the settlement of the general situation in the Congo — the peace and
security issues on which the Minister finished his speech — with the entirely different issue of a
proposal for the arbitration of a specific dispute under, for example, the Convention on the
Elimination of All Forms of Discrimination Against Women. It cannot possibly be a way of
meeting the requirements in Article 29 of that Convention or Article 14 of the Montreal
Convention for one State to go along to another and say: why don’t we sit down and talk about all
the problems that we’ve got, or why don’t we refer to arbitration how you’re going to withdraw
your forces from our territory. Those are totally different issues. It is not a case of two different
ways of looking at the same dispute. One only has to glance at what is on the agenda of the Lusaka
peace process — and you can see a very good illustration of it from what is in the Application and
the Request. One only has to glance at that and compare it with the language of these treaties to
realize that we are talking here about quite different matters, and that there is nothing in what the
Congo has done ¾ no single document it can put before you, no argument it has put before you ¾
which would suggest it has met the obligations laid down in Article 29 of the Convention on
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Women or Article 14 of the Convention on Montreal. Indeed, even today, in the second round of
oral hearings, when it is far too late, the Congo still has not suggested what is the dispute between
the two countries arising under the Convention for the Elimination of All forms of Discrimination
Against Women. What is the dispute under the Montreal Convention or the World Health
Organization Constitution? I said yesterday that Rwanda simply has no idea which provisions of
these treaties the Congo considers to be in issue. Mr. President, we are no wiser and no better
informed this morning than we were yesterday afternoon on this subject.
Two other points I can make very briefly before I conclude. The first concerns the role of
the Security Council. This may be the result of a misunderstanding of a translation, but I did not
suggest yesterday that because the Security Council were seised of the issues that therefore the
Court could not act. I suggested to you that the Court cannot act because there is no prima facie
basis for its jurisdiction. And that would be the case irrespective of anything the Security Council
may have done or may be doing. But it is, of course, the case that the Court will be aware that the
Security Council has taken action in respect of the situation in the Democratic Republic of the
Congo, and is continuing to do so.
And that leads me to my second, final point. That is, that the learned counsel for the Congo
suggested to you this morning that one merely had to pick up one of these documents and read it
out and it showed immediately what the Congo was suffering and that it was Rwanda’s fault.
Now that second point is actually rather important, because if one looks at the latest Security
Council resolution 1399 and at the latest Presidential Statement made only last month, those two
instruments make it clear that the United Nations is extremely concerned about the behaviour of
RDC-Goma, one of the rebel factions operating in a particularly complicated patchwork quilt — if
one likes — of rebel groups and other forces in that part of the Democratic Republic of the Congo.
But there is not the merest hint that Rwanda is responsible for that. On the contrary, Rwanda is
asked to use its good offices with the RDC-Goma to try and bring the RDC-Goma back into
compliance. And I must repeat what my learned friend the Agent for Rwanda said yesterday, that
there are no Rwandan troops in Kisangani and there have not been this year or last.
Now, fortunately, those are not issues to which the Court has to address itself, because this
case is actually one that turns on a very much simpler issue: the manifest absence of jurisdiction,
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an absence which has effectively been admitted before you this morning by counsel for the Congo.
Instead of addressing the arguments we raised yesterday about jurisdiction, they repeated their
comments about the gravity of the situation, the terrible nature of violations of international law
which they claim are occurring.
But even if one accepted ¾ and we do not accept it ¾ the truth of what is put before you, it
would make no difference to the question of jurisdiction. I will not read the quotation to you again,
but I would repeat the reference to what this Court said in the Legality of Use of Force cases.
There is a fundamental distinction between the violation of rules of substance and the Court’s
jurisdiction, and that the question of whether there has been a violation is one which can only be
addressed after jurisdiction has been established. It cannot be a substitute for the basis of
jurisdiction for this Court. Mr. President, I have no doubt that the Court will not lose sight of that
principle, even if the Congo has done.
I would now respectfully ask you to call upon Mr. Gahima, as the Agent for Rwanda, to
make our formal closing submissions.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. Je donne maintenant la parole à
M. l’agent pour la République rwandaise.
Mr. GAHIMA: Mr. President, Members of the Court. May it please the Court.
Rwanda is a country that has suffered immensely from problems arising from the
1994 genocide and its aftermath. Indeed, Rwanda is a country whose stability — indeed whose
survival — is still at risk. And one of the causes of the risks posed to our survival is the presence
in the Democratic Republic of the Congo of guerrillas which committed genocide in 1994 and
today are still committed to continuing it and to complete it. These groups include Ex-Far, the
former government army of Rwanda. They include the Interhamwe militia, which are not only part
and parcel of the Government of the military Democratic Republic of the Congo, but are indeed its
backbone. Honourable Members of this Court, you heard the delegation of the Democratic
Republic of the Congo admit before you this morning that under the process of the Lusaka Peace
Agreement they have signed disarmed about 2,000. But those are not all the combatants who
threaten our survival who are in the Congo: they are numbered in tens of thousands.
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We, in Rwanda, want peace ¾ peace for us and for our neighbours. It is a peace that we
seek with diligence and with the support of the international community, and a peace that we seek
through the framework of a treaty we and our brothers from the Democratic Republic of the Congo
have signed called the Lusaka Peace Agreement.
Our brothers from the Democratic Republic of the Congo said that Rwanda has not lived up
to its obligations under the Lusaka Peace Agreement. Nothing could be further from the truth.
Rwanda is very committed to the peace process that is in motion. The Peace Agreement provided
for a ceasefire: that ceasefire is in place and holding. The peace process required a disengagement
of forces: Rwanda withdrew not just 15 km, but 200 km ¾ more than 185 km from the front line
that the Peace Agreement provided for. So I beg your indulgence, Members of this honourable
Court, to let you know that Rwanda is a country that is committed to peace and is pursuing it
diligently because we need it ¾ as we know our brothers do.
The Democratic Republic of the Congo misrepresents the role that the Security Council has
played and what the Security Council expects of Rwanda. You have been told time and again,
honourable Members of the Court, that Rwanda has no regard for the resolutions of the Security
Council, but nothing could be further from the truth. Members of the Security Council ¾ all
members ¾ have visited our region very frequently to discuss the implementation of the Lusaka
Peace Agreement. We have had very good meetings with our leadership. We are in full agreement
with members of the Security Council about how the peace process in the Congo should proceed ¾
mainly implement the Lusaka Peace Agreement, mainly promote the inter-Congolese dialogue that
began in Sun City in South Africa in March. We are in full agreement with the Security Council on
all positions it has taken regarding the conflict in the Democratic Republic of the Congo.
You were told that government troops are in Kisangani. Our troops are not in Kisangani. If
you look at the latest Security Council resolution, there is nowhere where the Security Council says
that the troops of Rwanda are in Kisangani ¾ and that is not by mistake, because MONUC, the
United Nations peacekeeping force is on the ground in Kisangani and it is not by mistake that it has
not been mentioned that we are required to vacate Kisangani.
In conclusion, honourable Members of the Court, the arguments that have been set forth
during the hearings of the past two days boil down to this: we respect this Court, we respect our
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obligations under international law. But international law also confers certain rights ¾ such as the
right to evoke provisions of treaties that you are party to; such as the right to indicate to the Court
that this is not a dispute in which it has jurisdiction. We are doing no more than asserting our
rights under international law in raising the issue of jurisdiction before you. We are committed to
peace ¾ peace for Rwanda, peace for our neighbours. The fact that this Court does not make any
orders for provisional measures because it lacks jurisdiction does not in any way lessen our resolve
to continue the search for peace.
There is one other thing that I would like to ask your indulgence about, something I would
like to talk about. You have been given a lot of documents, not this morning’s documents, but the
documents that were attached to the Application and the Request for the indication of provisional
measures. They are documents that allege human rights violations in the Democratic Republic of
the Congo. Now, I would wish Members of the Court to spend just a little time to reflect on what
the eastern Democratic Republic of the Congo is like today. It is an area where the armies of
several countries are involved; it is an area where there are dozens of rebel groups, some opposed
to the Government of the Democratic Republic of the Congo, some supported by the Democratic
Republic of the Congo, or pirating. Needless to say, in an institution like this ¾ an institution of
conflict ¾ a lot that comes out in the press or as publications by some human rights organizations
is misinformation that is part and parcel of propaganda that is an inevitable element of war.
I wish to draw your attention, Members of the Court, to the fact that nothing that the
Democratic Republic of the Congo has produced links Rwanda to any of the activities that are
alleged to have taken place. But this is not an issue that I would wish to delve deeply into. The
basis of our arguments, yesterday and this morning, is basically that we do not believe that there is
a jurisdictional basis for the current proceedings. We set out our arguments. They are arguments
that are very sound. It is very clear that the Democratic Republic of the Congo could not answer
these, and they do not attempt to. So we continue with the request that we made to this honourable
Court yesterday ¾ first, that the Request of the Democratic Republic of the Congo for the
indication of provisional measures should be denied; and secondly, we also request that, in view of
the fact that the current proceedings are really an abuse of the process of court, we pray this Court
to exercise its discretion and strike this case from its List.
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I thank you, Mr. President and honourable Members of the Court.
Le PRESIDENT : Je vous remercie, Monsieur l’agent. Ceci met un terme à la présente
séance. Il me reste à remercier les représentants des deux Parties pour l’assistance qu’ils ont bien
voulu fournir à la Cour par leurs observations orales au cours de ces quatre audiences. Je leur
souhaite un heureux retour dans leurs pays respectifs et, conformément à la pratique, je prierai les
agents de bien vouloir rester à la disposition de la Cour. Sous cette réserve, je déclare la présente
procédure orale close.
La Cour rendra son ordonnance sur la demande en indication de mesures conservatoires le
plus tôt possible. La date à laquelle cette ordonnance sera prononcée en séance publique sera
communiquée aux agents des Parties en temps utile.
La Cour n’étant saisie d’aucune autre question aujourd’hui, l’audience est levée.
L’audience est levée à 12 h 40.
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Audience publique tenue le vendredi 14 juin 2002, à 12 heures, au Palais de la Paix, sous la présidence de M. le juge Guillaume, président